Calcutta High Court (Appellete Side)
Tarak Nath Bera vs The State Of West Bengal & Ors on 6 February, 2020
Bench: Joymalya Bagchi, Suvra Ghosh
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
&
The Hon'ble Justice Suvra Ghosh
CRA 540 of 2016
Tarak Nath Bera
-Vs-
The State of West Bengal & Ors.
For the Appellant : Mr. Moinak Bakshi
For the State : Mr. Sanjoy Bardhan,
Mr. Palash Chandra Majhi
Heard on : 06.02.2020
Judgment on : 06.02.2020
Joymalya Bagchi, J.:-
The appeal is directed against the judgment and order dated 02.08.2016
and 03.08.2016 passed by the learned Additional District & Sessions Judge, 2nd
Court, Tamluk, Purba Medinipur in Sessions Trial No.01 (05) 2010 arising out of
Sessions Case No.29 (02) 2008 convicting the appellant for commission of
offence punishable under Sections 326/307 of the Indian Penal Code and
sentencing him to suffer imprisonment for 10 years and to pay compensation of
Rs.15,000/- to Basudev Mal and Rs.5,000/- each to other three injured persons
namely Mritunjoy Bera, Sukumar Maity and Sunil Bera for the offence
punishable under Section 326 of the Indian Penal Code and to suffer
imprisonment for 10 years and to pay compensation of Rs.15,000/- to Basudev
Mal and Rs.5,000/- each to other three injured persons namely Mritunjoy Bera,
Sukumar Maity and Sunil Bera for the offence punishable under Section 307 of
the Indian Penal Code. Both the sentences shall run concurrently and if the
amount of compensation i.e. Rs.60,000/- in total is not paid to the injured
person the appellant shall suffer further imprisonment for 1 year.
Prosecution case alleged against the appellant and other accused persons
is to the effect that on 01.04.2007 at about 1-1:30 p.m. a dispute broke out
between the appellant along with other accused persons Bidyadhar Bera (since
deceased), Sukumar Maity, Gaya Rani Bera and Aparna Bera on the one hand
and Mrityunjoy Bera on the other hand over construction of a boundary wall
around the latter's residence. Construction of the wall had been going on for two
days. On the fateful day, the appellant along with other accused persons being
armed with various weapons came to the spot. The appellant broke a portion of
the wall. Thereupon, he was obstructed by one of the labours namely Sushil
Nayek (PW 7) who snatched away the spade from his hand. Then Sukumar Maity
a co-accused threw acid on Mrityunjoy Bera (P.W. 13), his brother-in-law
Sukumar Maity (P.W. 9), his nephew Sunil Bera (P.W. 5) and a construction
worker, namely, Basudeb Mal (P.W. 2). Subsequently, the appellant also threw
acid upon the aforesaid persons. As a result of throwing acid, the victims suffered
acid burn injuries and were treated at Paikpari BPHC and thereafter at district
hospital at Tamluk, Purba Medinipur. P.W. 2 was admitted in the hospital for
more than a month while the others were discharged earlier.
On the written complaint of P.W. 1, Champa Bera, wife of Mrityunjoy Bera,
P.W. 13 first information report was registered for investigation being Kolaghat
P.S. Case No. 45/2007 dated 01.04.2007 under sections 326/307/34 of the
Indian Penal Code.
In conclusion of investigation, charge-sheet was filed against the appellant
and other co-accused persons and the case was committed to the Court of
Sessions and transferred to the Additional Sessions Judge, 2nd Court, Tamluk,
Purba Medinipur for trial and disposal.
Charges were framed under sections 326/307/34 of the Indian Penal Code
against the appellant and co-accused Bidyadhar Bera, Gayarani Bera, Aparna
Bera and Sukumar Maity. In the course of trial, Bidyadhar Bera expired and the
case was filed against him.
Prosecution examined fifteen witnesses to prove its case. Defence of the
appellant was one of innocence and false implication. It was the specific defence
of the appellant that there was a counter case registered against the prosecution
witnesses over the self-same incident and the incident did not occur in the
manner and under circumstances as proposed by the prosecution. Appellant had
been admitted to hospital due to burn injuries as appearing from deposition of
P.W. 2 and his injuries had not been explained by the prosecution.
In conclusion of trial, the trial Judge by the impugned judgment and order
dated 02.08.2016 and 03.08.2016 convicted and sentenced the appellant, as
aforesaid. However, by the self-same judgment and order the trial Judge
acquitted Sukumar Maity, Gaya Rani Bera and Aparna Bera of all the charges
levelled against them.
In spite of notice, nobody appears on behalf of the victims.
Learned counsel appearing for the appellant argued that the prosecution
witnesses did not truthfully narrate the manner and circumstances in which the
incident occurred. Serious injury on the appellant resulting in his hospitalisation
for about a month has not been explained by the prosecution. Counter case was
registered against the prosecution witnesses over the issue. Sukumar Maity who
stands on the same footing with the appellant was acquitted by the trial Judge.
Accordingly, the appeal ought to be allowed.
Mr. Sanjoy Bardhan, appearing for the State submitted that the evidence of
the prosecution witnesses particularly that of the injured witnesses P.W. 2, P.W.
5, P.W. 9 and P.W. 13 are corroborated by the evidence of other eyewitnesses as
well as P.W. 14, Dr. S. Maity, who treated the victim. No defence was taken by
the appellant during trial that the injury suffered by him was due to assault by
the prosecution witnesses. On the other hand, it is evident such injury was
caused by spilling of acid while throwing such substance at the prosecution
witnesses. Under such circumstances, hospitalisation of the appellant due to
acid burn injuries reinforces the prosecution case with regard to his presence at
the place of occurrence and throwing acid at the victims resulting in grievous
injuries. Hence, the appeal is liable to be dismissed.
P.W. 1, Champa Bera, is the de facto complaint and the wife of Mrityunjoy
Bera, one of the injured victims. She deposed dispute cropped up with the
accused persons over raising of boundary wall around their homestead land.
Construction of wall was continuing for two days. On the fateful day, that is,
01.04.2007the accused persons came to the spot with various arms like lathi, shovel and iron rod etc. They tried to demolish the boundary wall. Mrityunjoy obstructed them. Bidyadhar Bera exhorted the other accused persons to kill Mrityunjoy. Sukumar Maity and Taraknath Bera threw acid at Mrityunjoy, Sunil Bera, his brother and Basudeb Mal, a labourer who was working at the spot. The injured persons were taken to Paikpari BPHC for medical treatment and thereafter to Tamluk hospital. She lodged written complaint which was scribed by Sova Ranjan Bera (Exhibit 1/1).
P.W. 2, Basudeb Mal, is an injured witness. He was a labour working at the site. He deposed on the fateful day while they were constructing the wall, quarrel broke out between the accused persons and Mrityunjoy Bera. Taraknath Bera went to his house and brought a shovel and started demolishing the wall. One of the labourers obstructed Taraknath Bera and snatched away the shovel from him. Thereupon, father-in-law of Taraknath Bera poured liquid on him as well as on Mrityunjoy, his brother-in-law, Sukumar Maity and nephew, Sunil Bera. They felt burning sensation and ran towards the end of the boundary wall. Thereupon, Taraknath Bera threw liquid on their bodies. They were admitted to hospital. He was treated for more than a month. Taraknath was also admitted at the hospital for treatment of injuries sustained by him due to such liquid.
Mrityunjoy Bera (P.W. 13), Sunil Bera (P.W. 5) and Sukumar Maity (P.W. 9) are the other injured witnesses. They have corroborated the evidence of Basudeb Mal, P.W. 2.
P.W. 7, Sushil Nayek and P.W. 11, Prosanta Dinda are the construction workers who were present at the spot. Both of them corroborated the evidence of the injured witnesses. P.W. 7 deposed he had confronted the appellant when he was demolishing the wall and snatched the shovel from him. Thereafter, Sukumar Maity and the appellant threw acid on the bodies of the victims. Evidence of the victims have also been corroborated by Radhanath Bera, P.W. 4 and Harekrishna Nayek, P.W. 12, who were present at the spot.
Victims were treated by P.W. 14, Dr. S. Maity. He has proved the bed head tickets namely, Exhibits 4, 5, 6 and 7. He opined that the injuries were acid burn injuries and grievous in nature.
P.W. 15 is the investigating officer.
From the evidence on record particularly that of the injured victims P.W.s 2, 5, 9 and 13 it is clear that on the fateful day, that is, 01.04.2007 a commotion ensued between the accused persons and Mrityunjoy Bera over construction of a boundary wall which had been undertaken for the last two days. In the course of the commotion, appellant brought a shovel and demolished a portion of the boundary wall. He was obstructed by Sushil Nayek, P.W. 7, a construction worker who snatched away the shovel from his hand and threw it away. Thereupon, Sukumar Maity, father-in-law of the appellant and an acquitted accused, threw acid at the victims. Thereafter, the appellant also threw acid at the victims resulting in grievous injuries. Victims were removed to the hospital and treated by P.W. 14. P.W. 14 opined that the victims had suffered acid burns which were grievous in nature. P.W. 2 was in hospital for more than a month.
Learned counsel for the appellant has criticised the prosecution case on the premise that the witnesses have not explained away the injury suffered by the appellant who was also admitted in hospital for about a month. It is further contended that a counter case was lodged against the prosecution witnesses and it has not been proved that the appellant was the aggressor. It was strenuously argued that one of the accused namely, Sukumar Maity, who stands on the same footing with the appellant has been acquitted on the self-same evidence. Hence, the appellant ought to be extended the same benefit.
Although the aforesaid contentions apparently appear to be attractive, deeper analysis of the evidence and other attending facts pursue me to hold otherwise. Firstly, no defence in the course of trial was raised by the appellant that he had been attacked with acid by the prosecution witnesses. Although some cross-examination is forthcoming with regard to registration of counter case, nothing has been placed on record with regard to the nature of allegations in the said case.
On the other hand, prosecution witnesses particularly the P.W. 2 has given an honest and complete narration of the incident disclosing that in the course of throwing acid on the victims the appellant also suffered acid burn injuries and was hospitalised. The genesis of the incident coming from the mouths of the prosecution witnesses, particularly, P.W.2 appear to be truthful and convincing and explain away the accidental injury suffered by the appellant while throwing acid at the victims. Secondly, with regard to the acquittal of the co-accused Sukumar Maity, I am of the view that such order of acquittal is an unmerited one. Ample evidence is forthcoming against the said accused and no cogent and convincing reason is given by the trial judge to record the order of acquittal. An unmerited acquittal cannot be a ground to over turn conviction of a co-accused which is founded on cogent and convincing evidence. As discussed earlier, I am of the opinion that the ocular evidence of the injured witness as well as the medical evidence on record clearly establish the role of the appellant in throwing acid at the victims resulting in grievous injuries. However, I am of the opinion that the incident occurred in the course of skirmish between the parties and was not premeditated one. Appellant did not have any intention to murder the victims. Hence, I am of the opinion while conviction of the appellant under Section 326 of Indian Penal Code is justified, I am inclined to acquit him of the charge under Section 307 of Indian Penal Code levelled against him.
Coming to the issue of sentence, I note four persons had suffered acid burn injuries and P.W.2 was admitted in the hospital for more than a month. Injuries were grievous in nature. However, it appears that the incident occurred in the course of a quarrel and the appellant acted without premeditation.
Balancing the aggravating and mitigating factors in the instant case, I am of the opinion while substantive sentence imposed on the appellant on the charge of Section 326 of Indian Penal Code may be reduced, restorative justice would be well served if the compensations awarded to P.W.2 and the other victims are increased. Accordingly, I modify the conviction and sentence imposed on the appellant as follows:-
(a) Conviction imposed on the appellant under Section 326 I.P.C. is upheld.
(b) Conviction and sentence imposed on the appellant under Section 307 of Indian Penal Code are set aside.
(c) Sentence imposed on the appellant under section 326 I.P.C. is modified and he is directed to suffer rigorous imprisonment for seven years and to pay compensation of Rs.30,000/- to P.W.2, Basudev Mal and a sum of Rs.10,000/- each to Mrityunjay Bera, Sukumar Maity and Sunil Bera, in default he shall undergo rigorous imprisonment for one year more.
The appeal is accordingly disposed of.
The period of detention, if any, undergone by the appellant during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure.
Copy of the judgment along with L.C.R. be sent down to the trial court at once.
Let a copy of this judgment along with the lower court records be sent down to the trial court immediately for necessary action and execution of the sentence.
I agree.
(Suvra Ghosh, J.) (Joymalya Bagchi, J.) AP/ss/rkd & PA